3.Methodology
The participation of law in the process of language revitalization could be analysed in three different ways: (1) there is no possible action able to stop language loss, therefore a rights based approach is irrelevant; (2) it is possible to diminish language loss but this is responsibility of a different field of science, in which case a rights based approach is again inappropriate; (3) Rights should take important part in language recuperation and are partially responsible for its failure.
Why was it decided here that options 1 and 2 are not correct? Why should legal instruments be targeted when discussing this problem? The first option cannot be accurate and the literature review above provided plenty of material to explain why. It is not a simple and easy task, but it is possible to stop language loss. Any linguistic guide found in libraries or on the Internet can illustrate this with cases of languages that were saved. As an example:
"Probably the most heart-warming case is in Paraguay, where Guaraní has come to be the chief sign of national identity, with official status (since 1992), enjoying widespread prestige, attracting great loyalty, and spoken by over 90% of the population. Paraguay was formerly considered to be a Spanish-speaking country in which Guaraní had a presence; today, some commentators reverse the description, talking about a Guaraní-speaking country in which Spanish has its place". [21]
Option 2 should be equally refuted. Dunbar states two theoretical approaches to explain this. First, language is a fundamental constitutive element of personal identity. [22] Second, language rights have an "ecological" side, under which linguistic diversity, like bio-diversity, is valued in and of itself. [23] Therefore, rights cannot be silent when it comes to protecting languages, both because it is part of protecting people’s identities and it is part of protecting diversity. These two reasons exemplify why language maintenance should be the object of concern for Rights and, consequently, points position number 3 as the one adopted by this paper: law should take an important part in language revitalisation.
However, numbers indicate that languages are currently dying very rapidly even after different acts and conventions came into force, which indicates that revitalisation has not been successful. This study points out a fault in the development of legal statements on linguistic rights, which is the omission of the economy-related factor when trying to revive endangered languages. This omission will be detected using the method of comparison. The doctrine provided by sociolinguistics on the theme is extensive and always identifies the economy as one - if not the major - point to be considered in the promotion of languages at risk. Below, it will be discussed in which way the law responded to the theory provided by linguists and what was in fact codified.
The reason for this contrast between Sociolinguistics and Law is to determine precisely that the latter is missing the issue of economy when treating linguistic minorities. After that and most importantly, this paper discussed the works of Hudson and Edwards to understand the consequences of this omission. The basic method used is, then, theoretical, contrasting authors who wrote in two very different fields of science to find out what one could learn from the other; in this case, how Rights could benefit from the existent linguistic doctrine.
4.Legal approach to linguistic minorities
The most basic protection for speakers of minority languages is the principle of non-discrimination, expressed in Article 2 of the Universal Declaration of Human Rights, which states that "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (...)". This same right was guaranteed by Article 14 of the ECHR and in Article 2(1) of the ICCPR. In the 1990s it has been reinforced by several instruments, such as Article 4(1) of the Framework Convention, Articles 31 and 32 of the Copenhagen Declaration, Articles 3(1) and 4(1) of the UNGA Minorities Declaration and in Article 2(1) ad 2(2) of an Additional Protocol to the ECHR on the Rights of Minorities (the "Minorities Protocol"). [24]
Another guarantee to linguistics minorities in the principle of protection and non-assimilation. This principle can be found in a negative aspect, where a State only has to guarantee the freedom from assimilation, as determined in Articles 3(1) of the Minorities Protocol and 5(2) of the Framework Convention; or in a positive aspect, found in many of the recent minorities instruments, which contain legally binding obligations to protect minorities from violence and other forms of aggressive behaviour based on hatred. As an example, the Framework Convention provides in Article 6, paragraph 2, that "The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity." [25]
There is also legal protection of language and basic civil and political rights, such as the right to a fair trial, freedom of expression and freedom of assembly and association. Article 5 of ECHR guarantees freedom from arbitrary arrest and detention, providing that "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him." Understanding the language is also guaranteed in the right to a fair trial. However, this only applies if the member of a linguistic minority does not understand the language being used. There is no right to choose his mother tongue otherwise.
Educational rights are perhaps considered the most important factor in promoting minority languages. Following this trend, Article 32.2 of the Copenhagen Declaration states that persons belonging to a national minority have the right to establish and maintain their own educational institutions, with private or public assistance. Article 14, Paragraph 1 of the Framework Convention safeguards the right of every person belonging to a national minority to learn his or her minority language. Art. 8(1) of the Minorities Protocol to the ECHR provides that "Every person belonging to a national minority shall have the right to learn his/her mother tongue and to receive an education in his/her mother tongue at an appropriate number of schools and of state educational and training establishments, located in accordance with the geographical distribution of the minority." [26]The Minority Languages Charter contains a wide range of provisions with respect to teaching the minority language and teaching through the minority language at the pre-school, primary, secondary and tertiary levels, as well as the training of the teachers and the monitoring of performance. [27]
As for the right to use a minority language in official contexts, Article 10(2) of the Framework Convention provides that "In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if those persons so request and where such a request corresponds to a real need, the Parties shall endeavour to ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities." [28]This is echoed by Article 34 of the Copenhagen Covention, Article 7(3) of the Minoritities Protocol to the ECHR and Articles 9 and 10 of the European Charter for Regional or Minority Languages.
Persons belonging to a national minority have the right to use the minority language in personal and place names. Article 11(1) of the Framework Convention provides that they have the rights to use their first names and surnames in the minority language and that these forms of the name should be officially recognised. Article 11(2) also gives them the right to use their language in signs, inscriptions and other information of a private nature visible to the public, while Article 11(3) requires the State to display traditional local names, street names and topographical indications intended for the public in both the minority language and the majority or official language. [29]
The right to access to media is guaranteed by Articles 19(2) of the ICCPR, that provides that "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.". Article 9 of the Framework Convention and Article 11 of the Minority Languages Charter give similar provisions [30].
Various minority instruments provide for a right to cross-border communications, facilitating contacts between minority groups or with members of the same groups in other States. This right is present in Article 2(4) of the UNGA Minorities Declarations, Article 32.4 of the Copenhagen Declaration, Article 10 of the Minorities Protocol to the ECHR, Article 17(1) and other of the Framework Convention and Article 4 of the Minority Languages Charter. [31]
Another important right guarantees that linguistic minorities participate in decisions which affect them. This is provided by Articles 2(3) and 5(1) of the UNGA Minorities Declaration, Articles 33 and 35 of the Copenhagen Declaration, Articles 11 and 13 of the Minorities Protocol, Article 15 of the Framework Convention and Article 7(4) of the Minority Languages Charter.
Having discussed what sociolinguistics and what rights say about minority language recuperation, what stands out is the issue mentioned above: the lack of economic responsibility of the State in protecting languages.
5.Analysis and discussion
Comparing the rights conferred by the minority instruments and the solutions indicated by Sociolinguistics doctrine, it is possible to verify that the basics are similar. The key points recommended by linguists were codified and transformed into word of law. The presence of education in language revitalization was indeed converted into a right for linguistic minorities, the cross-border communication issue was addressed and the access to media had its importance recognised. However, wealth and economy-related factors seemed to have been somehow mislaid in the process.
The omission of the most important issue on language revitalisation is more that it seems when first looked at. The State is consistently freed from any kind of financial responsibility for its minorities, which makes it unviable for most rights to be put into practice. It was stated above that minorities have the right to education in and through their languages, however, Article 13(1) of the Framework Convention also provides that "The exercise of this right shall not entail any financial obligation for the Parties."
About this, Robert Dunbar writes that "At the end of the twentieth century, where universal public education is the norm, at least in developed States, the right to set up schools without any guarantee of State support is a hollow right at best, particularly in the context of minority language communities, which are often economically as well as linguistically weak and vulnerable". [32]
The incentives for State financial omission go further. In the Explanatory Report of the Framework Convention, Paragraph 74 provides that "(...) this paragraph does not imply positive action, notably of a financial nature, on the part of the State.", while Paragraph 75 that "This provision concerns teaching of and instruction in a minority language. In recognition of the possible financial, administrative and technical difficulties associated with instruction of or in minority languages, this provision has been worded very flexibly, leaving Parties a wide measure of discretion. The obligation to endeavour to ensure instruction of or in minority languages is subject to several conditions; in particular, there must be "sufficient demand" from persons belonging to the relevant national minorities. The wording "as far as possible" indicates that such instruction is dependent on the available resources of the Party concerned."
The same happens to other conventions and to other rights. The access to media depends on similar fragile support, with Article 9(3) imposing no obligation on the State to fund such efforts.Clearly too many conditions are imposed for the protection of minorities and, even if all of them are met, States only need to go as far as "possible", accordingly to the resources available.
Apart from this extreme benevolence to States when dealing with the rights that were granted to linguistic minorities, it is easy to realise that the right to be economically empowered was completely missed. This paper understands that this hits at the heart of the question. Being economically weak is a great part of the reason why languages disappear, which is why this omission in law is so significant.
To understand more about this, it is necessary to go deeper in the linguistic work done by R.A. Hudson. He writes on the correlation between linguistic and social inequality, classifying three types of linguistic inequalities. Hudson names them subjective inequality, strictly linguistic inequality and communicative inequality [33]. The first one is particularly worth a look as it helps explain the artificially-created hierarchy between languages.
Hudson describes the subjective inequality as being concerned with what people think about each other’s speech [34]. The "right way of speaking" would be nothing more than a mirror of the virtues the society values the most. In that sense, the way the intellectual or the rich people speak, for instance, would be considered the standard way, according to which of these features are most esteemed in the society. That classification, however, does not account different languages. This work is using an extended interpretation and including languages as well as accents, as this distinction is still not vital at this stage.
The subjective inequality explains why one can easily be tricked just by a difference of accents. One person can draw conclusions about another person simply by the way that person speaks. Someone with upper-class accent tends to sound more interesting than someone with working-class accent, no matter if what the latter is saying is actually more remarkable. Even if an ideal world could probably be free of all prejudice, jumping to conclusions in this way is a fact in the real world. This happens with accents and, going beyond Hudson, this happens with languages too. A disadvantaged minority language speaker will hardly ever be given a chance in a circumstance where the standard speech is different.
The explanation for this phenomenon is, in a larger degree, psychological. One needs information about people’s personality because if affects one’s own behaviour. When knowing the person for a very short time, one has to gather enough information about them to decide how to behave: Shall one speak to this person or not? Shall one lend one’s notes? Now, how can this information be collected without hardly knowing the person? Hudson suggests that people do it either by what we hear about them from others or by intelligent guess work [35].
The way someone speaks transmits a great amount of information about them and it would be surprising if hearers ignored this information. In fact they do not and this helps greatly in the intelligent guesswork Hudson suggests. It is possible to reach certain conclusions about gender, social class or education by the speech of the interlocutor. And finally, the gap from social classifications to value judgments is filled through the notion of prototypes, association with what one already knows from previous experiences. That elucidates why someone, judging only by the way another person speaks, can easily make the assumption that that person is, say, dishonest.
So, this is a positive mental process that helps people live in society, but, on the other hand, it is also a prejudice of the dominant language speakers, who basically assume they are in a superior position in relationship to the minority language speakers.
This language-based prejudice is a two-way process. Not only does the majority language acknowledge itself as superior, but also the minority language feels inferior, confirming the problem. There has been a gradual but steady move away from the view that disadvantaged language is substandard and an increasing recognition that it is a valid language variety [36]. That means that a language is not considered substandard anymore, but only nonstandard, if the conditions indicate so. The academic view that there is no better or worse language and that they all reach their communication targets, although attractive, may not correspond to the real feeling of those who speak minority languages in a situation of conflict with the mainstream one.
This process is intimately associated with economy and wealth, as the sense of pride of the mainstream speakers, confirmed by a sense of shame of the minority language speakers, are directly related to how rich they are. The sense of shame caused by language is not uncommon and should be addressed by law. Testimonials associating language with humiliation are rather frequent, such as these two examples. The first is a testimony of a Canadian Indian-descendent:
"Because they associate punishment, abuse and shame with speaking their language, my parents were prevented from teaching our language to my generation. I cannot speak our language, and as a result I was never able to communicate with my grandparents. Many indigenous peoples say they still associate punishment and fear with speaking our indigenous languages." [37]
The second one is about multilingualism in Pakistan and the oppression dominant Urdu and English exercise over more than sixty smaller languages:
"Moreover, there are many literary works in Urdu and other languages—not to mention one’s own observation—that show how embarrassed the poor are by their houses, their clothes, their food, their means of transportation and, of course, their languages. In short, the reality constructed by the rich and the poor alike conspires to degrade, embarrass and oppress the less powerful, the less affluent, the less ‘gifted’ of the human race. This relates to language-shame—being embarrassed about one’s language—and hence to possible language death." [38]
The sense of shame is undoubtedly a sign of economical disadvantage. John R. Edwards cites Houston to detail major contentions about disadvantaged languages, among them: 1. the language of the disadvantaged children is deficient; 2. the disadvantaged children do not use words properly; 3. the language of the disadvantaged children does not provide them with an adequate basis for thinking; 4. to the disadvantaged children, language is superfluous as they prefer to communicate non-verbally [39].
These arguments are only founded on prejudice and are easily refutable, but even if false, they circulate in people’s minds and cause real damages to indigenous societies who will rather learn a different language than be seen as deficient. Mainstream groups that discriminate against and put down ethnic groups will contribute definitively to the feeling of shame about their languages and will stop parents from teaching them to future generations.
It is in this pressure situation that the old language is slaughtered by the new. The first phase is a decline of the number of the people who speak the language. Usually, just a few rural speakers remain. If these isolated groups come into close contact with a more socially or economically useful speech, then bilingualism becomes vital for survival. The first generation of bilinguals is frequently fluent in both languages, but the second generation becomes less proficient in the dying language, in part though lack of practice. For that reason, the old language is spoken mainly by the old people. The few residual speakers are semi-speakers. They can still communicate, but they forget the words for things, get endings wrong, and use a limited number of sentence patterns. In the next stage, the younger will recognise just a few words in the dying language, such as plants, foods, names of towns. At this stage, the language is said to have died. [40]
The community "decision" to shift its language to an economically advantageous one is unquestionable proof that economy matters and, in fact, a lack of help in this sector can determine if a language will endure or not.
